Friday, April 16, 2010

How Important is Notice of Entry?

Garcia v. City of New York - in 1999, the plaintiff moved to restore the action to the calendar.  The motion was denied because of the failure to attach an affidavit of service.  In 2007, the plaintiff moved to renew.  The Supreme Court denied the motion and the First Department affirmed in a 3-2 decision.  The majority held that the plaintiff failed to show a lack of intent to abandon or a reasonable excuse for the eight-year delay in making the motion.  The dissent argued that because the 1999 order was never served with notice of entry the time to seek renewal had not run.  According to the dissent, therefore, the renewal motion made in 2007 was still timely.  

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